End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

4.1:101 Model Rule Comparison

The black letter text of Conn. Rule
4.1 is identical to Model Rule 4.1 except Conn. Rule 4.1 uses numbers
(1, 2) to denote subsections instead of letters (a, b). However, there are slight
differences in the Comments. Comment
[1] to the Model Rule has an additional sentence, not in the corresponding
Comment to the Conn. Rule in describing dishonest conduct and refers to Model
Rule 8.4. Comment [1] to the Model Rule also describes false statements
in more detail than the Conn. Rule Comment which
succinctly states that misrepresentations can be a Ëfailure to actÓ. Model
Rule Comment [2] has an additional sentence stating that lawyers must keep
in mind their obligation to Ëavoid criminal and tortious misrepresentationÓ.
Comment [3] to the Model
Rule addresses a lawyerÁs obligation under Rule
1.2(d) and the possibility that withdrawal of representation may be required
to avoid assisting a clientÁs crime or fraud. The corresponding Conn. Rule Comment
does not address those issues.

4.1:102 Model Code Comparison

Paragraph (1) of Conn. Rule 4.1, like its Model Rule counterpart, is substantially similar to DR 7-102(A)(5), which stated that "[i]n his representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact". The principal difference of substance between the two provisions is that Conn. Rule 4.1(1)'s prohibition is limited to false statements made to third persons (while Rule 3.3(a)(1) separately prohibits such statements to a tribunal), whereas DR 7-102(A)(5) does not limit the persons or entities to whom false statements are forbidden. Paragraph (2) of the Conn. Rule, also like its Model Rule counterpart, is somewhat similar to DR 7-102(A)(3), which provided that a lawyer shall not "[c]onceal or knowingly fail to disclose that which he is required by law to reveal," but the Conn. Rule is more narrowly limited to disclosures necessary to avoid assisting a crime or fraud by the client and, like paragraph (1), is limited to communications with third persons. Conn. Rule 4.1 is also similar to DR 7-102(b) which requires a lawyer to rectify a fraud that has been perpetrated upon a person or tribunal by his client or a third person within the bounds of the attorney client privilege.

The term "third person" in Rule
4.1(1) includes opposing counsel. Dime
Savings Bank v. Aziz, No. CV95-0248107, 1995 WL 681535, at *1
(Conn. Super. Ct. Nov. 7, 1995) (holding attorney violated Rule
4.1 by making false statements to court and opposing counsel regarding his
clientÁs payment toward a mortgage arrearage). Additionally, a violation of
Rule 4.1 can give rise to a cause of action for intentional torts. Trudeau
v. Gold, No. 320519, 1996 WL 176386, at *1 (Conn. Super. Ct. Feb.
29, 1996). In Trudeau, defendant lawyer made representations
during settlement negotiations that he would not pursue a replevin action against
the plaintiff. Id. The
defendant later brought the replevin action and the plaintiff then filed suit
for fraud. The court held that fraudulent statements made by an attorney during
negotiations violated Rule 4.1 and can give rise to liability in tort.

Conn. Rule 4.1(2) makes clear that a lawyer's obligation to make disclosures in order to prevent criminal or fraudulent acts by a client is secondary to Rule 1.6 's requirement that confidences and secrets be preserved. Therefore, where confidences or secrets are involved, Rule 4.1(b) requires disclosure only in circumstances where Rule 1.6 allows disclosure. Those circumstances are set out in Conn. Rule 1.6(c) and (d).

Informal Opinion 00-11 states that a lawyer must revise his pleadings to reflect inaccuracies set forth by his clients so he does not make false statements to opposing counsel or the tribunal. If he does not revise the pleadings he should withdraw from representation. In the opinion, A and a person pretending to be B engaged the lawyer to bring suit against a car dealership. The lawyer found out that the actual B did not agree to the suit but the person pretending to be B signed for her. Actual B later agreed to join the suit. If the pleadings are not amended they constitute false statements and will cause future misrepresentations.

Informal Opinion
99-45 states that it is not a violation of Rule
4.1 for a solo practice attorney to use his or her Social Security number
in reporting to the Internal Revenue Service receipt of a clientÁs settlement
payment from an insurance company because it is the Ëreporting of proceeds for
someone else, which is trueÓ.

Informal Opinion
99-9 states that a lawyer has an ethical obligation under Rule
4.1 to reveal to opposing counsel that a client has filed a false financial
affidavit with the court because such a filing constitutes fraud. However, this
obligation under Rule 4.1 can be trumped by the confidentiality requirements
of Rule 1.6.

4.2:101 Model Rule Comparison

Conn. Rule 4.2 is almost identical to Model Rule 4.2 except the Conn. Rule refers to a ËpartyÓ while the Model Rule refers to a ËpersonÓ and the Model Rule adds that a lawyer may communicate with a represented ËpersonÓ without the other attorneyÁs consent if authorized by Ëa court order.Ó

4.2:210 "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

The leading case law in Connecticut notes that the purpose of Rule 4.2 is to Ëpreserve the integrity of thelawyer client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counselÓ. Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 236, 578 A.2d 1975 (1990). This case is often cited for this proposition. The court in Pinsky further explains that the restriction on communication is limited to matters concerning the representation. Lawyers may speak to parties regarding matters outside the scope of the litigation without consent of counsel. Id.

In the case of a represented organization or corporation, a lawyer is prohibited from communicating with certain employees about pending litigation but this prohibition does not apply to former employees. U.S. v. Housing Authority for the Town of Milford, 179 F.R.D. 69 (D.Conn.1997); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D.Conn.1991). Former employees are not encompassed within the term ËpartyÓ and therefore may be contacted without notice to employerÁs counsel. Dubois v. Gradco Systems, Inc., 136 F.R.D. at 344. The prohibition on speaking with employees only applies to employees that run an entity, have managerial responsibilities or have the ability to bind the corporation. Shoreline Computers, Inc. v. Warnaco, Inc., No. CV990422853S, 2000 WL 371206, *1 (Conn. Super. Ct. Apr. 3, 2000). There are some limits to contacting former employees including those former employees acting as trial consultants or those actively participating in collecting evidence or preparing for the litigation. Shoreline Computers, Inc. v. Warnaco, Inc., 2000 WL 371206, at *2, citingMMR/Wallace Power and Industrial, Inc. v. Thames Assoc., 764 F. Supp. 712 (D. Conn. 1991).

Informal Opinion 95-3 stated that a creditor's counsel, after obtaining a judgment against a debtor, may not contact the debtor directly, even after repeated unsuccessful attempts to contact debtor's counsel. CreditorÁs counsel may not contact debtor directly even if debtor's counsel's appearance is deemed withdrawn because that does not necessarily end representation. CreditorÁs counsel must verify that representation has been officially terminated before contacting debtor directly.

Informal Opinion 93-10 makes
clear that the communication of a final demand letter by an attorney directly
to the adverse party does violate Rule 4.2.
However, the attorneyÁs client is not precluded from directly sending the adverse
party the final demand.

Informal Opinion 92-6 holds that a corporationÁs general counsel is not encompassed within the term ËpartyÓ even if the corporation has retained outside counsel and contact with the general counsel is permissible as he is still in a position to negotiate for the corporation in settlement discussions.

Connecticut case law holds that when a defendant initiates contact with law enforcement officials and waives his right to counsel after properly being advised of Miranda rights, there is no violation of Rule 4.2 by detectives that interview the defendant. State v. Piorkowski, 243 Conn. 205, 700 A.2d 1146 (Conn. 1997). In Piorkowski, the Court held that Rule 4.2 does not prohibit prosecutors and their agents (including law enforcement officials) from communicating with defendants who are represented by counsel if the defendant initiated contact with the law enforcement officials, who had obtained a stateÁs attorneyÁs permission to interview defendant before doing so. Id.

4.2:230 Communications "Authorized by Law" -- Other

In Service v.
Meriden, No, CV940241732, 1995 WL 681537, *1 (Conn. Super. Ct.
Nov. 8, 1995), the suit involved a defendant municipality and plaintiffÁs counsel
contacted city employees without obtaining defense counselÁs prior permission.
PlaintiffÁs counsel argued that permission was unnecessary as the information
obtained was required to be disclosed pursuant to the Freedom of Information
Act (ËFOIAÓ). The court held that even though the communication was authorized
by law, both FOIA and Rule 4.2 apply. Therefore,
plaintiffÁs attorney still had to contact the City attorney before contacting
any City employee that was in a managerial position or had the authority to
bind the City.

Direct notice to an employer (not through employerÁs counsel) of a WorkersÁ Compensation claim does not violate Rule 4.2 even if an employer is represented by counsel as long as the plaintiff complies with the precise terms of the applicable statute regarding service. Bissonnette v. Kotsaftis, No. CV010162187, 2002 WL 241496, *1 (Conn. Super. Ct. Feb. 7, 2002).

Informal Opinion 01-18 states
that a request by an attorney on behalf of his client for medical records from
a health care provider who continues to provide client with health services
but who is also a defendant in a medical malpractice lawsuit does not violate
Rule 4.2 even though the health care provider
is represented by counsel because such request is authorized by statute.

4.2:240 Communication with a Represented Government Agency or Officer

Connecticut courts have held that blanket prohibitions on contacts with Government defendants is against the policies underlying Rule 4.2. In Rivera v. Rowland, No. CV95545629, 1996 WL 753943, *1 (Conn. Super. Ct. Dec. 17, 1996) the plaintiffs challenged the fairness of the criminal justice system. The Division of Public Defender Services (ËPDSÓ) was named as a defendant but the individual public defenders and assistant defenders were not named. The defendants sought a protective order barring the plaintiffÁs attorney from any communication with any attorney employed by the PDS. The court held that this restriction was overbroad and did not serve the purpose of Rule 4.2 because it Ëwould unduly restrict the search for truthÓ. Id. at *4. Since the public defenders and assistant public defenders did not have the ability to bind the PDS, they could be interviewed by plaintiffÁs counsel as fact witnesses. Id. at *5.

On the same issue, Informal Opinion 01-17 stated that where direct contact regarding litigation is sought with governmental employees or officials who have authority to take or recommend action in the matter, such contact is allowed if it addresses a policy issue (as opposed to a specific claim) and the contacting attorney affords governmentÁs counsel Ëreasonable advance notice of an intent to directly contact the person.Ó The contacting lawyer must also make clear his adverse position in the litigation.

Informal Opinion 87-15 addressed
whether a lawyer representing the parents of a handicapped child may communicate
directly with "non-managerial" employees of a local school board without the
consent of the school boardÁs counsel. The Committee held that the lawyer could
speak to such employees as long as they are not in a position to bind the school
board and the lawyer sufficiently identifies himself and his interest in the
pending litigation. In Informal Opinion 92-11 the
Committee declined to extend this allowance to managerial employees (elected
school board members) where counselÁs permission was expressly denied. The right
of access to public officials did not preempt the requirements of Rule
4.2.

4.2:250 Communication with a Confidential Agent of Non-Client

There were no Connecticut cases or opinions addressing communications with a confidential agent of a non-client.

4.3:101 Model Rule Comparison

Conn. Rule 4.3 is substantially similar to Model Rule 4.3 except that it omits the last sentence of the Model Rule, which states, ËThe lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.Ó

The Comment to Conn. Rule 4.3
is similar to Comment [1]
to the Model Rule but the Conn. Rule Comment additionally states that states
that the lawyer should not give advice to an unrepresented person other than
the advice to obtain counsel. Comment
[2] to the Model Rule is not contained in the Conn. Rule. Model Rule Comment
[2] discusses situations involving unrepresented persons when their interests
may or may not be adverse to your client and the types of permissible communications
with such persons.

4.3:102 Model Code Comparison

Conn. Rule 4.3 does not have a direct Model Code counterpart. The portion of the Conn. Rule Comment prohibiting the giving of legal advice to an unrepresented person other than to secure advice of counsel is substantively similar to DR 7-104(A)(2).

In Dubois v. Gradco
Systems Inc., 136 F.R.D. 341 (D. Conn. 1991), the question arose
whether a lawyer is prohibited from communicating with a former employee of
an adverse corporate party without consent of the corporate partyÁs counsel.
The case focused on Rule 4.2 but also held
that an attorney must comply with Rule 4.3
by making clear to the former employees the nature of the lawyerÁs role in the
case, including the identity of the plaintiff and the fact that the employer
is an adverse party. Id.See
alsoService v. City of Meriden,
No. CV 940241732, 1995 WL 681537 (Conn. Super. Ct. Nov. 8, 1995) (in a suit
against a municipality the lawyer could not contact City employees without written
permission of a City attorney and without express representation of his purpose
to the employees so as to avoid any misunderstanding).

Formal Opinion 27 states that one attorney should not represent both parties in an uncontested divorce, but it is proper for an attorney to represent one party and prepare any separation agreements even if the second party is not represented by counsel. It is necessary for the attorney to inform the second party that he or she is not being represented by the attorney and that the second party is free to retain counsel at any time.

Informal Opinion 95-30 involves an attorney that represents a client involved in a motor vehicle accident that was not reported to the police but the client later sought medical treatment and then retained attorney to recover costs from the other party to the accident. The Committee held that the attorney should ascertain whether the potential defendant is represented by counsel and should make clear in any contact that the attorney represents the plaintiffÁs interests. The attorney is allowed to contact the potential defendant and his insurance carrier as long as the above conditions are met.

Informal Opinion 88-14 holds
that Rule 4.3 does not apply to communications
about hiring a lawyer and that the assumption underlying the rule is that the
communicating lawyer already represents a client and is attempting to obtain
an advantage for his existing client.

4.4:101 Model Rule Comparison

Conn. Rule 4.4 is identical to Model Rule 4.4(a). The Model Rule includes subparagraph (b), regarding the obligation to notify the sender of a misdirected document pertaining to a lawyerÁs representation of her client, which is not part of the Conn. Rule.

4.4:102 Model Code Comparison

The Model Code contained a number of provisions dealing with a lawyer's obligations towards various categories of third persons: DR 7-102(A) (1) provided that a lawyer must not "take . . . action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another"; DR 7-106(C) (2) provided that a lawyer must not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person"; DR 7-108(D) prohibits a lawyer from making Ëextra-judicial statement[s] that a reasonable person would expect to be disseminated by means of public communication üthat relates to [a criminal] trialÓ; DR 7-108(D) provided that, "[a]fter discharge of the jury . . . the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror"; and DR 7-108(E) provided that a lawyer "shall not conduct . . . a vexatious or harassing investigation of either a venireman or a juror." Conn. Rule 4.4 unifies these scattered provisions into a single Rule applicable to all third parties, irrespective of their specific status.

In Kligerman v.
Statewide Grievance Committee, 1996 WL 168027, *1 (Conn. Super.
Feb. 27, 1996), the court reversed a finding by the Statewide Grievance Committee
that the Plaintiff violated Rule 4.4. The
Grievance Committee held that Plaintiff Attorney Kligerman violated Rule 4.4
by requesting a capias1 from the court and serving the issued
capias on an opposing party (ËComplainantÓ) resulting in the ComplainantÁs arrest.
The Complainant filed a complaint with the Grievance Committee against Plaintiff
Kligerman claiming that Kligerman was guilty of misconduct in pursuing the capias
that resulted in her arrest. On appeal the court held that the Grievance Committee
did not base its decision on clear and convincing evidence of a Rule 4.4 violation.
In fact the judge in the underlying case had issued the capias with full knowledge
of the facts and had affirmed its issuance when it was challenged by the Complainant.
The court held that the judgeÁs order affirming the capias Ëconclusively established
that there was a substantial legitimate purpose for the capias.Ó Id.
at *4.

The court explained ËRule [4.4] is designed to prohibit a lawyer from using devices and strategies, which are legal in themselves, but which the lawyer employs for the sole purpose of harassing an opposing party or third person. The rule is not designed, however, to protect such persons from embarrassment or inconvenience in all events and regardless of the circumstances. The lawful actions of an attorney in behalf of his or her client during a lawsuit may often result in embarrassment or inconvenience to an opposing party or even to a third person. Rule 4.4 outlaws such actions only if the attorney engages in them for no other reason than to harass. If the actions have some substantial legitimate purpose, they are not prohibited even if they have the incidental effect of causing embarrassment or inconvenience.Ó Id. at *4. Therefore, as long as a substantial legitimate purpose exists for an attorneyÁs actions and they are not undertaken solely to harm a third person they are allowable under Rule 4.4.

In Pascal v. Statewide
Grievance Committee, 1995 WL 626249, *1 (Conn. Super. Oct. 16,
1995), the court reversed a finding by the Statewide Grievance Committee that
the Plaintiff violated Rule 4.4. The Grievance
Committee held that Plaintiff Attorney Pascal violated Rule 4.4 by disclosing
an expert witness to the court without first retaining him and subsequently
settling the case. The court held that the applicable section of Rule 4.4 provides
that Ëa lawyer shall not use ü methods of obtaining evidence that violate the
legal rights (of a third person).Ó Id. at *2. The
court held that the expectation that the expert would testify at trial did not
rise to the level of ËevidenceÓ contemplated by Rule 4.4. Additionally, the
court held there was no clear and convincing evidence that the plaintiff wrongfully
benefited by using the expertÁs name. Therefore, no violation of Rule 4.4 existed
and the Grievance Committee decision was reversed.

Informal Opinion 89-20 (1989)
concluded that a lawyerÁs duty to respect the rights of third-persons under
Rule 4.4 is violated when he represents a
wife in divorce proceedings and records a judgment lien in his own name on the
marital home to secure attorneyÁs fees.

Informal Opinion 91-22 (1991)
addressed the issue of whether an attorney who counsels or assists a client
Ëto engage in a fraudulent transfer ü that has no substantial purpose other
then to delay or burden creditorsÓ is a violation of Rule
4.4. Id. The Committee concluded that what
constitutes Ësubstantial purposeÓ under Rule 4.4 is a question of fact.

Informal Opinion 96-4 (1996)
commented that an attorney who mistakenly receives psychiatric records of his
clientÁs ex-wife (a third-person) cannot review or release those records and
remain within the ambit of Rule 4.4. The
Committee further commented that it does not matter that the attorney himself
did not engage in the pursuit of the records nor does it matter that the client
and the keeper of the records did not intend to violate the ex-wifeÁs legal
rights.

Informal Opinion 97-31 (1997)
commented on situations where an attorney is defending against an attorneyÁs
fee claim and he appears to burden the claimant by insisting (on the clientÁs
behalf) Ëon a lump sum settlement or a waiver of an attorneyÁs fee claim in
return for settlement.Ó Id. The Committee concluded
that Rule 4.4 does not apply since the Ëdefense
lawyer may be acting for the client in seeking to limit the financial risks
faced by the defendant.Ó Id. It did note, however,
that the attorney must still give due consideration to the potential for conflict
and the clientÁs right to reject settlement offers.

Rights of Former Employees Not Represented by Counsel

In Dubois v. Gradco
Systems, Inc. 136 F.R.D. 341 (D. Conn. 1991) the plaintiffÁs lawyer
sought to depose former employees of a corporation. The corporation argued that
the former employees could not be produced under Rule
4.2 because it was improper for counsel to communicate directly with former
employees who were protected by the attorney-client privilege. The court held
that the former employees were not represented parties to the dispute and were
not protected by Rule 4.2. However, the court also held that with respect to
unrepresented former employees, counsel Ëmust take care not to seek to induce
or listen to disclosures by the former employees of any privileged attorney-client
communications to which the employee was privyÓ. Id.
at 347. Such efforts could violate Rule 4.4
which requires respect for the rights of third persons.

4.4:210 Cross-Examining a Truthful Witness; Fostering Falsity

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

Informal Opinion 99-50 (1999) concluded that a lawyer can bring both a civil action and criminal action as long as the purpose of the criminal action is not solely to obtain an advantage or as a threat for an unfounded demand in the civil action.

ËRule 3.4(7)
does not prohibit an attorney from simultaneously pursuing a criminal complaint
and a civil action against the same party unless the attorneyÁs sole reason
for filing the criminal complaint is to seek an advantage in the civil action.Ó
Somers v. Statewide Grievance Committee,
245 Conn. 277, 715 A.2d 712 (1998).

Informal Opinion 93-23 (1993) advised
an attorney representing the plaintiff in an action against another attorney
for alleged improper fee splitting that a settlement proposal in which the plaintiff
promised to Ënot bring professional disciplineÓ against the defendantÁs attorney
in exchange for settlement of the civil matter would violate Rule
3.4(7) Ëbecause it would constitute an implicit threat of quasi-criminal
proceedings for the sole purpose of gaining an advantage in a civil matter.Ó